Tag: Supreme Court

The election of Tuesday, November 6, brought mixed results for reproductive justice. Women–including many women of color–were elected to office around the country, and the House now has a Democratic majority. However, the Senate remains Republican, and thus retains power over judgeships.

Citizens in three states also voted on ballot measures that would create “trigger laws”–state laws or constitutional amendments that would take effect if the Supreme Court overturns Roe v. Wade, leaving abortion regulation to states. In two of the three states–Alabama and West Virginia–the trigger laws passed, meaning that if Roe falls, abortion will become illegal or much less accessible in those states. Alabama’s law has even broader implications as it assigns embryos and fetuses “personhood” status. Oregon voters voted against a proposed trigger law. For details, see Macaela Mackenzie in her Glamour article and Irin Carmon in The Cut.

Meanwhile, an NBC exit poll taken on election day showed that two-thirds of voters favor keeping the Roe decision as the law of the land.

This collection of three short essays is sobering but essential reading: How to Prepare for a Post-Roe America from In These Times. Journalist and author Robin Marty, lawyer Farah Diaz-Tello, and activist, author, and scholar Loretta J. Ross offer warnings and recommendations for dealing with a United States where abortion is again illegal–or at least inaccessible for most of the country. It’s not a happy picture, but there are things we can do.

The Supreme Court of the United States has ruled, 5-4, that so-called crisis pregnancy centers–places that are set up to look like medical clinics but usually don’t offer medical care and exist solely to dissuade women from getting abortion care–cannot be required to post a statement disclosing what they really are and how women can find actual abortion providers. California’s disclosure law had been upheld by the Ninth Circuit Court.

But the Supreme Court, in a majority opinion written by Justice Clarence Thomas, based its decision on the First Amendment, saying the law “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”

The court’s support of free speech rights for these specious crisis pregnancy centers (CPCs) poses a question in our minds: If CPC staff have free speech rights and cannot be required to provide particular, legally-prescribed information to their clients, then the same must be true for actual medical professionals, right? Doctors, nurses, and counselors who provide abortion care are currently required in some states to read particular statements to their patients–and some of these legally-required statements contain outright lies. There are state laws requiring doctors to tell their patients that abortion may result in “post-abortion stress syndrome” (fictional), fetal pain (untrue), breast cancer (no), and other ill effects for which there is no evidence, or that a medication abortion can be reversed (not shown). Surely, forcing clinic staff to provide these particular, legally-prescribed statements to their patients violates their First Amendment rights.

While one of us—D.A.—lives in the relative reproductive freedom of Canada, Pat lives in Ohio, a state that is sliding backwards in time and policy at an alarming rate and is threatening to drag the rest of the country along with it.

The latest in a string of bills that endanger women is Ohio HB 565, a fetal personhood bill that would make abortion at any stage murder, with no exception for cases of rape, incest, or danger to the woman. A total abortion ban, with a charge of murder attached. Oh, and did we mention that Ohio has the death penalty? “Pro-life” is apparently a malleable term.

Even the legislators (18 men and 2 women, names here for Ohio voters) who have sponsored the bill must know that its chances of passing and being signed—even by Gov. John Kasich—are slim. But, as the New York Times editorial board points out, such an outrageous bill can serve to make other, almost-as-radical bills seem reasonable by comparison.

On March 23, 2018, Jessie Hill, Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law, who has served as attorney for Planned Parenthood, Preterm (an abortion provider in Cleveland), and the Ohio ACLU in reproductive rights cases, spoke at the ACLU in Cleveland about this and other recent abortion bills and laws in Ohio. It was a sobering recitation.

The Ohio legislature has passed—and Gov. Kasich has signed—legislation that prevents women from seeking an abortion because of Down syndrome. It’s a law that does nothing to improve access to resources for families of children with Down syndrome; it merely restricts women’s freedom to make their own reproductive decisions and to consult freely with their doctors. The Ohio ACLU and Planned Parenthood have won a preliminary injunction against the law, but the state will appeal.

A complete ban on dilation and extraction (D&E), the most common 2nd-trimester abortion procedure, has been proposed in the Ohio legislature. In effect, that’s a ban on any outpatient abortion after 13 weeks. Ohio is likely to pass the ban, Prof. Hill said, in spite of the fact that similar laws have been struck down in other states.

TRAP laws (Targeted Regulation of Abortion Providers) have been highly effective in Ohio. In 1999, Ohio had 22 clinics that provided abortions; today there are only eight, and three are at risk of closing. Prof. Hill says that Cincinnati could become the largest metropolitan area in the country without an abortion provider. Although many clinics have been able to comply with requirements for ambulatory surgical facilities—way beyond what is needed for safety—some have not been able to get written transfer agreements with nearby hospitals. That’s because Ohio law does not permit public hospitals to make such agreements with abortion providers; Catholic hospitals refuse them, of course; and in recent years Catholic hospital systems have acquired many other private hospitals which then must comply with their religious restrictions on abortion. In Cincinnati, even The Jewish Hospital is now part of the Catholic Mercy Health system and so cannot provide a written transfer agreement with the remaining Planned Parenthood clinic. Of course, the transfer agreements are simply a ruse to close clinics; any hospital emergency room is required to treat a woman who needs emergency care. An initial challenge to the written transfer law was unsuccessful; Planned Parenthood has another in court right now.

A “heartbeat bill”—a ban on any abortion after a fetal heartbeat can be heard—is under consideration in the Ohio legislature again, in spite of the fact that Gov. Kasich vetoed a similar bill more than a year ago. Since a heartbeat can be heard at around six weeks after conception, the ban would be in effect before many women even know they are pregnant.

Around the country, states face the same kinds of challenges to women’s reproductive rights. The ACLU, Planned Parenthood, NARAL, and other organizations and individual clinics are fighting the fight in legislatures and in court. From these cases, Prof. Hill pointed out one positive sign from the Supreme Court of the United States: in Whole Woman’s Health v. Hellerstedt, the court ruled that states cannot place restrictions on abortion providers that impose an undue burden for women who seek abortion. The crucial part of that decision, Hill said, is that courts must balance the benefits of such restrictions against the burdens they cause—and, most importantly, that there must be evidence of the health and safety benefit of those restrictions. On that basis, there’s a clear path to fight TRAP laws and other such restrictions that offer no safety benefit at all.

If, in the panic after the 2016 election, you offered support to the ACLU and other such organizations for their legal work, please don’t forget to renew your support now. (Links above.) There’s a long legal road ahead in Ohio and around the country.